AFT v B

[2004] QSC 403

SUPREME COURT OF QUEENSLAND

CITATION:

AFT v B [2004] QSC 403

PARTIES:

AFT
(applicant)
v
LB AND THE ESTATE OF NB (Deceased)
(respondent)

FILE NO:

BS8198 of 2004

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

8 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2004

JUDGE:

Wilson J

ORDER:

(1)      That the first respondent LB pay to the applicant AFT the sum of $20,000 by way of compensation for injury suffered by her by reason of the offence of rape of which the first respondent was convicted on 12 July 1985;

(2)      That the second respondent The Estate of NB (deceased) pay to the applicant AFT the sum of $15,000 by way of compensation for injury suffered by her by reason of the offence of rape of which NB was convicted on 12 July 1985;

(3)      That the respondents pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where the applicant was raped by the second respondent (her stepfather) – where the rape was facilitated by the first respondent (the applicant’s mother) – where the second respondent is deceased – where the rape occurred 19 years before the application for compensation – where the applicant suffers posttraumatic stress disorder as a consequence of the rape

Criminal Code1899 (Qld), ch 65A, ss663AA(1), 663B(1)
Criminal Offence Victims Act 1995 (Qld), s 46(2)
Limitation of Actions Act 1974 (Qld), s 10(1)(d)
Public Trustee Act 1935 (Qld), s 35
Supreme Court of Queensland Act 1991 (Qld), s 93N
Succession Act 1981 (Qld), s 66(1)
Uniform Civil Procedure Rules 1999, r 71

Griffiths v Kerkemeyer (1977) 139 CLR 161, considered
Jacob v Roberts [2002] QCA 87, followed
R v Chong, ex parte Chong [2001] 2 QdR 301, followed
R v Grahame, ex parte Freeman, followed
R v Jones, ex parte McClintock [1996] 1 QdR 524, followed
R v Morrison, ex parte West [1998] 2 QdR 79, followed
Stewart v Woods [2002] QSC 164, followed

COUNSEL:

AJ Kimmins for the applicant

SOLICITORS:

Tony Bailey Solicitor for the applicant

1. WILSON J:  On 19 January 1985 the applicant was living in Normanton with her mother (LB) and stepfather (NB). That night she was raped by her stepfather; her mother not only stood by but actively encouraged NB to commit the rape and forced the applicant to submit to the ordeal. On 12 July 1985 LB and NB were both convicted of rape; she was sentenced to 7 years’ imprisonment with hard labour, and he was sentenced to 5 years’ imprisonment with a recommendation for parole after 2 years. NB has since died.

1. The applicant seeks criminal compensation from her mother (the first respondent) and the estate of her stepfather (the second respondent).

1. The applicable criminal compensation scheme is that in chapter 65A of the